Beto’s Constitutional Folly

Former Democratic Texas Senate candidate Rep. Beto O’Rourke gestures at his midterm election night party in El Paso, Texas, November 6, 2018. (Adria Malcolm/REUTERS)In questioning the Constitution, he gets the problem and the solution exactly backwards.

Yesterday, Beto O’Rourke made news. In her Washington Post article yesterday on O’Rourke’s immigration stance, Jenna Johnson made the rather interesting point that he often favors proposing debates and raising questions rather than proposing policies. “O’Rourke says he is being open-minded, as he wishes more politicians would be,” Johnsons writes. Exhibit A in her lengthy interview with him: He raised a question about the Constitution. In a quote that’s already flown through Twitter and conservative media, he said this, when pondering whether the United States is now, in Johnson’s words, “incapable of implementing sweeping change”:

Does this still work? . . . Can an empire like ours with military presence in over 170 countries around the globe, with trading relationships . . . and security agreements in every continent, can it still be managed by the same principles that were set down 230-plus years ago?

This is a variation on a theme I’ve heard countless times on the left — often in response to arguments over originalism and (more recently) in response to anger at the very structure of our government itself. Why shackle ourselves to the wisdom of the distant past? How could the Founders have foreseen the challenges of the present?

It’s worth taking these questions seriously. After all, the Constitution isn’t the Bible. It’s not the holy and inspired Word of God, and if its terms and structure are hurting our Republic, they can and should be amended. But I’d submit that, when one examines the United States and considers the failings that render our politics so dysfunctional, we in fact do have 18th-century answers to our 21st-century challenges and that many of our dysfunctions are the result of abandoning the Constitution, not of embracing it.

We’ve failed because we’ve refused to be managed by the “principles that were set down 230-plus years ago.”

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Let’s take, for example, the issue O’Rourke raises about our nation’s military presence around the globe. The vast majority of Americans can’t possibly list all the nations where we’re engaged in actual combat. To the extent that some of those operations are classified, I can’t list all those nations — and following American combat operations is a key part of my job.

We’ve reached this point in large part because Congress has utterly abdicated to the president its constitutional responsibility and authority to declare war. It’s simply handed over one of its most important powers, and it stubbornly refuses to take it back. And that’s not the only power it’s given to the president. Donald Trump has lately been able to make sweeping, unilateral decisions about immigration (the travel ban, for example) and tariffs (our trade war with China) precisely because of previous congressional acts delegating an enormous amount of authority to the executive branch

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These issues are symbolic of the larger constitutional challenge of a diminished Congress, where the branch of government intended to be the most powerful is now thoroughly subordinate to the executive and the judiciary. Congress is now — to use Jonah Goldberg’s excellent phrase — largely a “parliament of pundits.” They serve mainly as critics of or cheerleaders for the president and judges who make the truly significant national decisions.

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One result of a diminished Congress is a profound sense of political alienation. If you live in a safely blue or red state, then, in a federal election, you may well never cast a single vote of true significance. The leadership of the two most potent branches will be decided by other men and women, the subset of Americans who live in our few truly swing states.

Moreover, our national government’s decades-long rejection of federalism has immense consequences during a time of profound geographic division and negative polarization. Even after 2018’s blue wave, Republicans entirely control 31 state legislatures, and Democrats control 18. That means there’s only one state (Minnesota) that has divided control of the legislature. A modern record of 37 states have “trifecta” governments, with one party controlling both houses of the state legislature and the governor’s mansion.

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But if you combine this level of geographic division with the continued growth of the federal leviathan, then you reach the intolerable point where citizens of Texas understand that Nancy Pelosi may have more political influence over their lives than their own governor. Conversely, citizens of San Francisco face a reality where Kentucky’s Cocaine Mitch may well have more real power in their state than Gavin Newsom.

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A return to constitutionally mandated congressional supremacy places the federal government closer to the people, as the Founders intended. A restoration of true constitutional federalism would allow progressives and conservatives greater flexibility to build communities that reflect their values, without exacerbating negative polarization by imposing their values on unwilling, resistant cities and states all across the country.

An imperial president legislating through regulation, running myriad wars without congressional approval, and appointing federal judges who even at the lowest level are more powerful than any Senator is not the government the Founders intended. We are most assuredly not governed by the 230-year-old principles of the past but rather by the foolishness of the present.

There’s a path forward for America, but it requires us to look back and rediscover the wisdom of a political generation far wiser than our own.

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